Tag Archives: The Wall Street Journal

ByDAVID B. RIVKIN JR. and ANDREW M. GROSSMAN

The Wall Street Journal, Jan. 31, 2017

Judge Neil Gorsuch, President Trump ’s nominee to succeed Justice Antonin Scalia, is a native Coloradan and avid outdoorsman. He clerked for a federal appellate judge and two Supreme Court justices and spent a decade practicing law before his appointment in 2006, at age 39, to the 10th U.S. Circuit Court of Appeals. In the decade since, he has written some 850 opinions.

The way to take a judge’s measure is to read his opinions, and so we set out to review Judge Gorsuch’s. It was not an arduous task, for his prose is unusually engaging—think Scalia, with none of the abrasiveness. Justice Elena Kagan has declared herself a fan of his writing style. The only difficulty in summarizing Judge Gorsuch’s output is the compulsion to quote, at length, from so many of his opinions.

One opens this way: “Haunted houses may be full of ghosts, goblins, and guillotines, but it’s their more prosaic features that pose the real danger. Tyler Hodges found that out when an evening shift working the ticket booth ended with him plummeting down an elevator shaft.” The case, by the way, was a prosaic dispute between insurers. Another opinion starts: “What began as a fight at a strip club finds its way here as a clash over hearsay.”

Judge Gorsuch shows a concern for the people whose disputes are before the court. Each opinion typically begins with the name of the person seeking relief and why. A recent example: “After a bale of hay hit and injured Miriam White while she was operating her tractor, she sued the manufacturer, Deere & Company.” Ms. White’s appeal was summarily denied, but even the brief, three-page opinion reflects a serious engagement with her arguments and the facts—in contrast with the boilerplate language judges often use in such decisions. Win or lose, parties appearing before Judge Gorsuch surely know that they have been treated with fairness, consideration and respect.

These are not stylistic flourishes, but central to how Judge Gorsuch views the judicial role. “In our legal order,” he has written, “judges distinguish themselves from politicians by the oath they take to apply the law as it is, not to reshape the law as they wish it to be.” When a judge understands that he has no authority to legislate from the bench, cases that might otherwise be hard become straightforward exercises in applying law to facts.

Thus, Judge Gorsuch could recognize the “tragic circumstances” of a family whose daughter had died in a rafting accident, while still holding that the liability release she had signed was legally binding. That Colorado allows people to assume such risks, he explained, was a choice for the state’s General Assembly, not the court.

In a similar dissent, Judge Gorsuch argued for allowing a seventh-grader who was arrested for horseplay in gym class to sue the police officers, reasoning that no New Mexico statute authorized the arrest. And he has vigorously enforced rights of religious exercise under statutes like the Religious Freedom Restoration Act, deferring to Congress’s decision to vindicate, as he put it, “this nation’s long-held aspiration to serve as a refuge of religious tolerance.”

Judge Gorsuch is among the judiciary’s most consistent and adept practitioners of textualism, the approach Scalia championed. In a memorial lecture last year, Judge Gorsuch said that “an assiduous focus on text, structure, and history is essential to the proper exercise of the judicial function.” Textualism, he added, serves to “confine the range of possible outcomes and provide a remarkably stable and predictable set of rules people are able to follow.” On the other hand, attempting to divine legislative intent, as he wrote in one opinion, is a “notoriously doubtful business.” Another opinion decried the judicial “conjuring” that substitutes the court’s view of optimal policy for Congress’s.

In an influential 2015 decision, Judge Gorsuch excavated the meaning of a law increasing penalties on anyone who “uses” a gun “during and in relation to” a drug offense. He carefully employed “plain old grade school grammar”—including a sentence diagram.

Judge Gorsuch’s textualism extends to the Constitution, quite emphatically: “That document,” he wrote, “isn’t some inkblot on which litigants may project their hopes and dreams for a new and perfected tort law, but a carefully drafted text judges are charged with applying according to its original public meaning.” Looking to the “original public meaning” of the Fourth Amendment, for example, Judge Gorsuch has rejected the government’s view that a search warrant could be applied across jurisdictional lines. He also disputed its claim that police officers may ignore “No Trespassing” signs to invade a homeowner’s property without a warrant.

What about the Constitution’s separation of powers, intended to safeguard liberty? Judge Gorsuch has been at the vanguard of applying originalism to the questions raised by today’s Leviathan state, which is increasingly controlled by unaccountable executive agencies. These questions loom large after the rash of executive actions by President Obama, and now the whiplash reversals by the Trump administration.

The deference that judges now must give to agencies’ interpretations of the law, he wrote in an opinion last year, permits the executive “to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design.”

Judge Gorsuch added: “Maybe the time has come to face the behemoth.” His addition to the Supreme Court would give the justices a better chance than ever to do precisely that.

Messrs. Rivkin and Grossman practice appellate and constitutional law with Baker & Hostetler in Washington.

Former White House lawyer, David B. Rivkin, Jr., delivered a devastating Wall Street Journal opinion piece that calls for the United Nations to stay away from the precarious issue of Palestinian statehood for its own good—if not that of the world at large.

Palestinian Authority President Mahmoud Abbas is expected to seek recognition of Palestine from the U.N. later this week and key members such as Russia, China, and Britain are supportive. Recognizing Palestine as a state would have major geopolitical repercussions, as Rivkin noted in his piece.

“The U.N.—General Assembly or Security Council—has no power to create states or to grant all-important formal ‘recognition’ to state aspirants,” Rivkin wrote with co-author Lee A. Casey in the September 20 article. “The right to recognize statehood is a fundamental attribute of sovereignty and the United Nations is not a sovereign.”

Rivkin emphasized that Palestine does not meet the basic criteria for statehood, including: a permanent population, a defined territory, a government, and the capacity to enter into relations with other states.

Digging deeper into the response from the Obama administration, which called Palestine’s bid a “distraction,” Rivkin wrote that it was “unfortunate” that Obama failed to present the case against a Palestinian statehood resolution “in legal rather than tactical terms.” Had his administration done this, Rivkin wrote, it would “greatly reinforce the U.S. position, also providing a thoroughly neutral basis for many of our allies, particularly in Europe, to oppose Mr. Abbas’s statehood bid.”

Rivkin ended the article on the U.N. with an ominous warning, reminding readers of the classic example of France supporting the infant United States’ rights to independence in 1778, which led that country into war. Fittingly, he then reminded the United Nations what it was designed to do:

“First among [its] purposes is maintaining international peace and security, and efforts prematurely to force recognition of a Palestinian state clearly undercut this goal,” Rivkin wrote. “This is, in fact, a rare instance in which a measure is bad policy, bad law, and has the real potential to damage the interests of its opponents and its supporters.”

A frequent contributor to The Wall Street Journal, Rivkin was awarded the prestigious 2011 Burton Award for Legal Achievement for his writing in The Washington Post.